UK Law: Sex Shops


 Licensing

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Councils Not Licensed to Moralise...

European law requires fair play for lap dancing and sex shop licencees


Link Here 9th July 2012

An interesting newsletter from a law firm discussed legal issues arising Leeds City Council considering the lap dancing licences for the 7 clubs in the area.

First of all it noted that an existing licence is consider in law as a protected possession in human rights law:

It has been accepted that a licence is classed as a possession capable of protection under Article 1 of the First Protocol of the European Convention on Human Rights.

This clearly states that a person has a right to peaceful enjoyment of his possessions and the case of Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR classifies a licence as something capable of protection.

Not something that can councils can take away on a moralist or feminist whim.

Secondly there are European requirements imported into UK law that impose standard conditions on councils when considering licence applications:

The Provision of Services Regulations [S.I. 2009/2999]. Regulation 24(1) imposes three important tests highlighting that any refusal must be:

  • Non discriminatory
  • Necessary
  • Proportionate

Surely this would allow failed applicants to ask a court 'exactly how necessary was it for a council to refuse a license for a venue 200m away from a school where the operating hours don't overlap?'

The law firm noted that all 7 clubs in Leeds got their licences despite a high level of opposition from MPs, councillors and Object.

...Read the full article

 

 

Update: Gosschalks Solictors Follow Up on Westminster Overcharging...

So how many other local authorities are overcharging for sex shop licence fees?


Link Here 5th July 2012
Full story: Unfair Sex Shop Licences...Court battle over unfairly high sex shop licence charges

Gosschalks Solicitors in Hull city centre acted for successful claimants in a case that saw Westminster City Council come under scrutiny after it was revealed it had been charging too much for granting and renewing licences to trade to operators of sex shops in its area.

Stephen Dillon, partner at Gosschalks Solicitors said:

Since December 28, 2009, Westminster had been illegally charging licensees, through their annual fee, for costs incurred by Westminster Council taking action against unlicensed sex shops. As a result, the lawful licensed sex shops were being charged far too much in their licensing fee to trade.

The case has also now created more work for Gosschalks. Dillon said there will be about 40 other local authorities to investigate and reminded people who are required to have a local authority licence to trade to consider whether they have been, or are being, overcharged. Dillon suggested that licensees could take advantage of the Freedom of Information Act to find out more details on how councils have arrived at their licence fees.

Gosschalks will now be making requests to other local authorities. Dillon said: We will be asking how the figures have been calculated. It may be that they are legitimate but until we ask, we won't know.

Since the ruling in May, Westminster City Council asked for permission to appeal but it was rejected.

 

17th May
2012
  

Update: Extortionate Sex Shop License Fees Set to be Reduced...

High court judge finds that sex shop licence fees should be limited to just the administration costs to the council, (and not include London Beautification costs for the Olympics)
Link Here Full story: Unfair Sex Shop Licences...Court battle over unfairly high sex shop licence charges

Sex shop owners have won a High Court victory over licensing fees which could see them claw back an estimated £ 1 million.

A judge has ruled that Westminster City Council unlawfully used licence fee income to enforce against illegal sex shops. Mr Justice Keith declared that a recently introduced European directive did not permit the determination of a reasonable licence fee to include the costs of enforcement.

Tony Devenish, the council's Cabinet member for licensing and public health, spouted:

Naturally we are disappointed at this decision, which we intend to appeal.

Westminster City Council has always maintained that the use of licence fee income to enforce against illegal sex shops is a proper use of public money, protecting the quality of life for our residents and visitors, including the global reputation of London.

Enforcing against the illegal sex trade actually benefits those who are legitimate operators in the sex industry.

With millions of extra visitors about to descend on London to celebrate the Jubilee and Olympics, it is critical people see the best face of our city.

The landmark ruling was a victory for Simply Pleasure Ltd and six other long-standing licensees of 11 sex shops in London's Soho and two others in Covent Garden and the West End selling adult sex toys, DVDs, and books and magazines.

The judge said that in the past the cost of enforcing the licensing system was often reflected in the licence fee. But in 2009 new regulations were introduced to implement EU Directive 2006/123/EC, which was aimed at creating a free and competitive market for services within the European Union .

The judge said that whatever domestic law had permitted in the past , the directive did not allow the licence fee to exceed the administrative costs covering the steps which an applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. The judge said:

The fact that the council has preferred over the years to use the licence fee to charge the operators of sex establishments for enforcing the system does not affect the proper interpretation of the 2009 regulations.

For all these reasons, therefore, I have concluded that since the year beginning February 1 2010 the council has not been permitted, when determining the reasonable licence fee for sex establishments, to reflect the fee which it determines the costs of enforcing the system.

 

 

UK Law: Indecent Displays...

Indecent Displays (Control) Act 1981


Link Here 1st January 2001

As amended by:

  • Police and Criminal Evidence Act 1984

  • Cinemas Act 1985

  • Broadcasting Act 1990

This article

1 Indecent displays.

(1) If any indecent matter is publicly displayed the person making the display and any person causing or permitting the display to be made shall be guilty of an offence.

(2) Any matter which is displayed in or so as to be visible from any public place shall, for the purposes of this section, be deemed to be publicly displayed.

(3) In subsection (2) above, “public place”, in relation to the display of any matter, means any place to which the public have or are permitted to have access (whether on payment or otherwise) while that matter is displayed except—

(a) a place to which the public are permitted to have access only on payment which is or includes payment for that display; or

(b) a shop or any part of a shop to which the public can only gain access by passing beyond an adequate warning notice;

but the exclusions contained in paragraphs (a) and (b) above shall only apply where persons under the age of 18 years are not permitted to enter while the display in question is continuing.

(4) Nothing in this section applies in relation to any matter—

(a) included by any person in a television broadcasting service or other television programme service

(b) included in the display of an art gallery or museum and visible only from within the gallery or museum; or

(c) displayed by or with the authority of, and visible only from within a building occupied by, the Crown or any local authority; or

(d) included in a performance of a play; or

(e)included in a film exhibition—

(5) In this section “matter” includes anything capable of being displayed, except that it does not include an actual human body or any part thereof; and in determining for the purpose of this section whether any displayed matter is indecent—

(a) there shall be disregarded any part of that matter which is not exposed to view; and

(b) account may be taken of the effect of juxtaposing one thing with another.

(6) A warning notice shall not be adequate for the purposes of this section unless it complies with the following requirements—

(a) The warning notice must contain the following words, and no others—

“WARNING Persons passing beyond this notice will find material on display which they may consider indecent. No admittance to persons under 18 years of age.”

(b) The word “WARNING” must appear as a heading.

(c) No pictures or other matter shall appear on the notice.

(d) The notice must be so situated that no one could reasonably gain access to the shop or part of the shop in question without being aware of the notice and it must be easily legible by any person gaining such access.

2 Powers of arrest, seizure and entry

(2) A constable may seize any article which he has reasonable grounds for believing to be or to contain indecent matter and to have been used in the commission of an offence under this Act.

(3) In England and Wales, a justice of the peace if satisfied on information on oath that there are reasonable grounds for suspecting that an offence under this Act has been or is being committed on any premises and, in Scotland, a sheriff or justice of the peace on being so satisfied on evidence on oath, may issue a warrant authorising any constable to enter the premises specified in the information or, as the case may be, evidence (if need be by force)

4 Penalties

(1) In England and Wales, any person guilty of an offence under this Act shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(2) In Scotland, any person guilty of an offence under this Act shall be liable—

(a) on summary conviction—

(i) in the district court, to a fine not exceeding £200;

(ii) in the sheriff court, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

 

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